Archive for the 'Employment-Based Immigration' Category

Visa Guru Charlie Oppenheim Agrees There Are Unused Visas

As many of my readers will know, over the summer there was much discussion about whether there were unused visas and whethey they could be recaptured.  Various newspapers had reported about 200,000 visas remain unused. The recaputuring of those visas would reduce the severe visa backlog.  Here is my article: Unused Visas- To Recapture or Not to Recapture, That Is The Question”

As a result, through AILA, I asked Charlie Oppenheim to confirm whether there were indeed unused visas.  Here is what he said (see below): Copied from AILA.  I want to extend a huge thank you to Mr. Oppenheim on behalf of myself and my readers for taking the time to read my questions, and to AILA for taking my questions to him.

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Member Question Regarding Unused Visa Numbers
An AILA member posed a series of questions following news reports of an estimated 200,000 unused visas which could be recaptured through administrative action.

Charlie agrees that there are approximately 220,000 family and employment-based visas that have gone unused, most of which can be attributed to the period between 1992 and 1997. Prior to the “dot com bubble,” demand was usually insufficient to use all of the available employment-based visa numbers in any given fiscal year. Since then, the increase in demand for labor in the IT sector and improved interagency processes have contributed to greater use of employment-based visa numbers in the fiscal year for which they were allocated. In the past, such unused numbers have only been recaptured through legislative action.

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Now that we confirmation that there are 220,000 visas to recapture, what can be done about it? Legislation would be necessary to recapture those. This is because the law does not specifically discuss roll-overs in these categories (see my chart in the previous article).  However, I would ask the Adminstration to look at reinterpreting the law.  The law already allows for the recapturing of unused visas.  Recapturing those would significantly reduce the visa backlog which would in turn help American businesses hire skilled-immigrants as well as would-be entrepreneurs who are otherwise stuck ‘in the line’ preventing them from starting their own companies and creating jobs.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

October 2014 Visa Bulletin Commentary

The October 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico:  F2A category advances a month taking the priority date to 1 February 2013; F2B preference advances 2 months with PD at 1 November 2007;  F4 category advances 21 days taking PD to 22 January 2002;  EB2 is current and, and EB3 advances a huge 6 months to PD at 1 October 2011.

For India only: F2A category advances a month taking the priority date to 1 February 2013; F2B preference advances 2 months with PD at 1 November 2007;  F4 category advances 21 days taking PD to 22 January 2002;  EB2 India sees no movement leaving PD at 1 May 2009 and EB3 sees 7 days advancement taking priority date to 15 November 2003.

EB5 Note: There was much discussion in news reports about the unavailability of EB5 visas for citizens of China.  The October 2014 visa bulletin shows visas are now current and there should not be any waiting time.  The visa bulletin does not mention any warning issues for visa retrogression anytime soon but it is something that we will start monitoring to inform you.

If you are eligible to file,  it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until October 1st and can file while the priority date remains current for you.  Good luck to those who can file!

We will report on the November 2014 visa bulletin when it is released. See below for future cut off dates information:

News re. upcoming visa availability:

D.  VISA AVAILABILITY IN THE COMING MONTHS

INDIA Employment-based Second Preference: Increased demand will require the retrogression of this cut-off date, possibly in November, to hold number use within the fiscal year 2015 annual limit.

Unused Visas: To Recapture or Not to Recapture- That Is The Question

Please visit this link before reading the article as the comment from Attorney Roger Algase is important because he clarifies that more understanding is necessary in the article. The issue is complicated no doubt and it would be appreciated if anyone who can make the issue crystal clear should comment on this. 

http://discuss.ilw.com/content.php?3445-Article-Unused-Visas-To-Recapture-or-Not-to-Recapture-That-Is-The-Question-By-Tahmina-Watson

To help discern the issues, here is the first draft of my “Unused Visa chart V1” with all the relevant sections of the current law. The pieces of the puzzle have been laid down- now to put the picture together. Feel free to help.

First draft to understand where visas are not being used and need recapturing

First draft to understand where visas are not being used and need recapturing

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(The below article needs to be updated and will be updated soon). 

The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal)  that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action.  One of those issues was apparently to recapture unused visas.

That issue caught my eye as it has been on my research to-do list for a while.  The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.

Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):

If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.

The law already allows the use of unused visa. So what is all the fuss about?

Each year 140,000 employment-based immigrant visas are issued. There is a complicated formula to calculate visa distribution.  The questions we should ask are these: (1)  In each fiscal year, do we have a record of how many visas were denied or otherwise not used? (2)  If so, do we know if they were reused within that particular fiscal year? Perhaps the Department of State can shed light on how many were unused from previous years.  Here is a report that lists number of visas issued.

From discerning all the complicated legal mumbo-jumbo from the statute,  the law basically says unused visas from the previous year will be added on to the current year of visa availability.  From what I can tell, unused visas are generally being put back in the pool.   While I cannot completely understand the numbers in the above linked reports, I believe the information should be available.  Reports from the Wall Street Journal and Politico discuss that 200,000 visas can be recaptured.  I would very much like to know how that number was determined (if anyone reading this article knows, then please do let me know!).

If indeed there were unused visas in past fiscal years that need recapturing, then do we even need a new law or executive order to recapture them? The law above in black and white clearly says they can be reused.

Therefore, in my opinion, unused visas- from years past,  can be reissued to other qualifying immigrants. No executive order necessary. Just understanding, implementation and execution.

I will continue my research and update this article in due course, if my research leads to more worthwhile information. But in the meantime, your question may be- why is this important?

The Backlog.  The visa backlog is one of the biggest problems our broken immigration system is encountering.  You may often hear the phrase  that people will have to go to the back of the ‘line’ to get their visas. There is no ‘line’ as such but the’ line’ refers to the waiting time to get a visa. People are waiting for years, sometimes, decades to get visas.  The employment-based preference categories have severe backlogs, particularly for China, India, Mexico and the Philippines.  Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, which in turn will help businesses hire the right people, focus on growing their businesses and not worry about whether their employees will stay or leave the US.

Will the President include this in his list of executive orders? Well, I don’t think an executive order is necessary for the above reasons. But let’s imagine I missed something in my research and it does need an executive order. Will he include it in his list?  Hard to say.  If he is looking for maximum impact, this is definitely one way to make a big difference.  Politically, he is already in a challenging situation by all accounts- the GOP will take issue with whatever he does.  So, why not go for maximum impact and just go big?

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Tahmina Mentioned in CNNMoney

CNNhomepage pic

Image courtesy of CNNMoney

Thank you to CNN and Reporter Sara O’Brian for reporting on an issue that I care so deeply about and mentioning my work. My regular readers will know how strongly I feel about these issues.

The article highlights the frustration that I and many of my colleagues face helping startups get visas. Hope this will shed light on the problem, particularly at a time when the White House is hoping to find immigration solutions for entrepreneurs through executive action.

If you are a startup hopeful, or someone invested in the startup community, your voice is important. Make an appointment with your local House/Senate Representative and explain why this is important to you.  Everyone needs to speak up for things to change. Enjoy the article!

Here is a link to the article. 

Microsoft To Cut 18,000 Jobs: Immigration Status When Laid-Off

On Thursday July 17, 2014, Microsoft made an announcement that 18,000 will be slashed- most by December 2014 and all by June 2015.  While this is a blow to the economy which will see about 1300 job cuts in Washington State. To the 18,000 employees, it is important for anyone with a work visa in the US to start making plans for post-lay-off.

In 2009 when the economy tanked and resulted is many lay-offs, I had written an article titled “The Importance of Maintaining Status When Laid Off”.  I have added the link here.

Employment-based immigration law is very rigid and one cannot be in the US without employment, should that be the basis of stay in the US. Should one fall out of status for any reason, it will be hard to impossible to get back into status.  So, any change of status must occur before the current status ends (in other words, before the last day of employment, if possible).

Whether you are in Seattle or any part of the United States, the federal immigration laws will apply and immigration status must be a priority consideration for anyone affected.

 

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

We Need Better Immigration Policies for Startups and Entrepreneurs

 We Need Better Immigration Policies for Startups and Entrepreneurs

- Tahmina Watson

“USCIS intends to revoke your H-1B visa because we have discovered you are a co-founder.” Yes. That is indeed what my client learned one morning.  USCIS learned during the renewal process of my client’s previously approved H-1B case that he was an original co-founder.  While my client never intended to hide it, the information was not specifically mentioned in the initial filing.  After a series of requests for further evidence, the final request was regarding the relationship between my client and his company.

My client, a co-founder of his company – who has garnered much praise in the tech industry, employs seven full-time American workers, and has helped create several indirect jobs by virtue of those who use and sell his product – was facing imminent departure from the U.S. His business, business partner, employees, and clients all were also put into limbo as a result.

Why? Don’t we want companies to start here? Well, currently, U.S. immigration law does not have a specific visa category for Startup founders, and the available visa options are far from ideal.  A very strict policy was laid down in a memo on January 8, 2010 by Donald Neufeld, Associate Director of Service Center Operations of USCIS. That memo made some drastic changes in the way H-1B cases would be adjudicated and put immense restrictions on the employer-employee relationship, causing adverse effects to petitions by founders.

To successfully apply for an H-1B as a co-founder, one must categorically prove that the company controls the founder’s employment.  To prove such control, the USCIS expects an onerous amount of corporate documentation, including articles of incorporation, board meeting minutes, shareholder agreements, stock ledgers, etc.

It was my privilege to help my client win this case.  As a team, we brainstormed the type of documentation he would be able to provide.  We decided to send many internal, otherwise confidential, documentation to demonstrate he was always given direction in his work and he was not the one making decisions.  We submitted emails, client contracts, employee information, payroll evidence, references and much more.  It was a challenging request to say the least.

Startups by their nature operate lean and mean.  Startup founders/entrepreneurs are known to work around the clock to ensure their products are successful.  In the efforts to have a successful company, they have employees to supervise and clients to keep happy.  Instead of using all his energy to build the business, my client was anxious and worried about providing enough of the right kind of information to respond to a challenging and burdensome request.  I am sure that during this intense period, my client suffered loss both emotionally and financially.

Lessening the efficiency of a person while they’re trying to get a business off the ground makes no sense. One should not have to defend oneself for being a founder of a company; it should be a matter of pride.  Luckily we were able to successfully demonstrate that his employment was controlled by the company.  Many founders are not so lucky and end up cut off from the start up they helped create by our irrational immigration laws.

We cannot have rhetoric from our government that calls for entrepreneurs and the need to keep high-skilled workers in the U.S., while that same government acts against implementing that ideology.

In the absence of a Startup Visa, I suggest that two changes are made to existing policy with immediate effect.  Firstly, eliminate the use of the Neufeld Memo, at least for founders and co-founders of startups utilizing H-1B visas.  Founders need to operate their businesses.  Often they will have many roles in addition to their primary H-1B job description.  For example, as a business owner, I am not only a lawyer, but a human resources manager, marketing manager, bookkeeper, supervisor and countless others.  To have my company control my job would impede my success.

Secondly, allow the use of cash substitutes such as stock valuation, convertible notes, and other such regularly used methods instead of cash wages.  Startups generally cannot afford high wages, particularly in the early stages.  They need the opportunity to get their companies to the stage where funding can be obtained from investors.  While the policy argument against cash substitutes may be fear of the entrepreneur becoming a public charge, USCIS should impose policy to prevent that and revoke someone’s visa if he or she resorts to public assistance.  Entrepreneurs are resourceful people who do not want handouts from the system.  Give them the chance to start their companies, contribute to the economy, and create jobs for American workers.  After all, America is a nation of immigrants.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

August 2014 Visa Bulletin Commentary

The August 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: No movement in F2A category leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 200s;  EB2 is current and, and EB3 sees no movement leaving to PD at 1 April 2011.

For India only:  No movement in F2A category  leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 2002;  EB India sees a 4 months and 21 days jump forward  taking PD to 22 January 2009 and EB3 sees some forward movement of 7 days taking us to priority date 8 November 2003.

With the jump forward for EB3 India, it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until August 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the September 2014 visa bulletin when it is released. See below for future cut off dates information:

D.  VISA AVAILABILITY IN THE COMING MONTHS

The China-mainland born Employment Third and Third Other Workers cut-off dates have advanced for the month of August, and could do so again for September. There are two reasons for this advance after the retrogression of the cut-off date earlier this summer: 1) The heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date has declined during the past two months, and 2) declining number use in the Family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year, has resulted in availability of several hundred numbers for use in the China-mainland born Employment Third preference.

During the past two months, the India Employment Second preference cut-off date has advanced very rapidly based on the projected availability of “otherwise unused” numbers under the worldwide preference limit. It must not be assumed that this cut-off date will continue to advance at the same pace during the coming months. A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be. Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, at which time the cut-off date is likely to retrogress significantly.

July 2014 Visa Bulletin Commentary- EB2 India Sees Significant Advancement!

visa-passport blog picThe July 2014 visa bulletin was released this morning.

Headline: EB2 India sees a jump forward of 3 years, 9 months and 18 days.  

Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: No movement in F2A category since last month’s retrogression leaving priority date at 1 May 2012, F2B preference advanced 30 days with PD at 1 May 2007;  F4 category advanced 7 days to PD at 22 December 2001;  EB2 is current and, and EB3 sees no movement since last month’s retrogression leaving to PD at 1 April 2011.

For India only:  No movement in F2A category since last months retrogression leaving priority date at 1 May 2012, F2B preference advanced 30 days with PD at 1 May 2007;  F4 category advanced 7 days to PD at 22 December 2001;  EB India sees huge jump forward of 3 years, 9 months and 18 days taking PD to 1 September 2008 and EB3 sees some forward movement of 15 days taking us to priority date 1 November 2003.

With the significant jump forward for EB3 India, it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until July 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the August 2014 visa bulletin when it is released.

 

July 2014 Visa Bulletin Is Out!

The July 2014 Visa Bulletin was released a short while ago. Our usual commentary to follow soon, stay tuned!

Tahmina Discusses New H4 EAD Rule on Feature News Story Tonight at 8pm PST

 

Tahmina on CCTV-America

Tahmina on CCTV-America

You may recall our recent post about the H4 EAD news story we participated in.

The story will air tonight (June 3) at 8pm PST on CCTV America’s “Biz Asia America” on Comcast channel 334 in the Seattle area. The program is also featured on the Dish Network at the same time. Let us know if you watch it!   You can check it out online too at www.cctv-america.tv/livenews.    Here is the link to the video:

http://www.cctv-america.com/2014/06/04/reformed-h-1b-visas-let-spouses-work

 

CCTV America image copied from their website

CCTV America image copied from their website


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